Against his eight colleagues, he stood in lonely, honorable dissent.
It fell to Justice Samuel Alito the other day to remind Americans how far their culture of liberation has veered from common sense and appreciation of the small decencies that undergird civilization.
On a question of “free speech” — at its center a claimed right to begrime with taunts and insults the funeral of a U.S. Marine — the four members of the U.S. Supreme Court’s liberal-permissivist bloc weren’t likely to find against the jeer leaders. It was the conservative bloc whose behavior startled. Chief Justice John Roberts, Justice Antonin Scalia, and Justice Clarence Thomas went along with the permissivists, in the name of “robust, uninhibited, and wide-open” debate. As if the honored word “debate” applied to placards exhorting onlookers to “Thank God for Dead Soldiers.”
Against his eight colleagues, Sam Alito stood in lonely, honorable dissent. “Our profound national commitment to free and open debate,” he wrote, “is not a license for the vicious verbal assault that occurred in this case.” Alito saw no free speech deprivation in the judgment a district court had levied against the traveling freak show known as Westboro Baptist Church, in Kansas: a gang keener on disrupting military funerals than on preaching the redemptive love of Jesus.
The picketers could have picketed almost anywhere in America, said Alito. Why at the church where the funeral of Marine Lance Cpl. Matthew Snyder was being held? From the claim of free speech rights there was no logical pathway to the intentional infliction of “severe emotional injury on private persons at a time of intense emotional sensitivity.’”
Among the judicial precedents Alito noted was a 1942 case in which the high court called attention to “the social interest in order and morality.” That was of course back when American culture accorded order and morality a higher seat in national proceedings than was due trash-talking and narcissistic chest-thumping. The debasement of traditional norms of respect and civility, from the 1960s forward, accompanied cultural grants of latitude to do anything that resembled self-expression: burn a U.S. flag, swear on the air, publish pornography, insult or howl down a speaker.
Daniel Webster crying “Liberty and Union, now and forever,” the Westboro wackos proclaiming, at military funerals, God’s hatred of “fags” — both are the same, it seems. Except they aren’t. Not according to right reason they aren’t.
I trust, after 47 years in the media, teaching and talking and writing, I needn’t protest my devotion to “freedom of speech, or of the press,” as the Founding Fathers referred to it. I am bound to add that free speech obtained its dignity and cultural warrant through the importance that earlier generations attributed to that “robust” debate praised by the court’s 8-1 majority. That “God Hates Dead Soldiers” should be considered an idea on the same plane as “endowed by their Creator with certain unalienable rights” is further evidence that modern society barely knows up from down.
When I taught journalism at a major university, I thrust Milton’s “Areopagitica” in my students’ faces. Here! Look! This is what free speech is about — the quest for Truth! “Give me the liberty to know, to utter, and to argue freely according to conscience above all liberties,” Milton had written. Yes! Yes!
Accordingly, we bind ourselves to put up with a fair amount of nonsense — but not all nonsense, because no morally healthy society accords unlimited living space to the ugly, the twisted, the debased. Perhaps our own society just doesn’t know anymore, due in part to Supreme Court tutelage, what real debasement looks like. We might get up a good debate on that topic, assuming the Westboro wackos and their pious defenders could be kept at bay.
Mr. Murchison is completing a biography of the founding father John Dickinson. An earlier version of this column appeared in the Dallas Morning News.
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